[2022] KEELC 2079 (KLR)
The court found that the prohibitory order registered against the defendant's property was intended solely to secure the payment of the decretal sum awarded to the plaintiff. Since the plaintiff has acknowledged receipt of the full decretal amount and there is no opposition from the defendant, the purpose of the...
Source-derived case information.
- Citation
- [2022] KEELC 2079 (KLR)
- Parties
- Plaintiff: Antony Reecu Kanoti; Defendant: Kathaka Mwarania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 129 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Lift Prohibitory Order
- Outcome
- application granted
- Legal Topics
- Prohibitory Orders, Land Title Encumbrances, Decretal Amounts, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Antony Reecu Kanoti
Plaintiff
Kathaka Mwarania
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Lift Prohibitory Order
Legal Issues
- 1 Whether the prohibitory order registered against title deed L.R Kiamuri ‘A’/1277 should be lifted after full payment of the decretal amount.
- 2 Whether there is any justification to maintain the encumbrance on the property after satisfaction of the judgment debt.
Ratio Decidendi
The court found that the prohibitory order registered against the defendant's property was intended solely to secure the payment of the decretal sum awarded to the plaintiff. Since the plaintiff has acknowledged receipt of the full decretal amount and there is no opposition from the defendant, the purpose of the prohibitory order has been fulfilled. Continuing to encumber the property serves no legal or equitable purpose. The court, guided by precedent, held that the prohibitory order should be lifted and the land registrar directed to remove the encumbrance.
Court Disposition
application granted
Orders
- The prohibitory order registered against title deed L.R Kiamuri ‘A’/1277 is lifted.
- The relevant land registrar is directed to remove the encumbrance from the property.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC NO. 129 OF 2012
ANTONY REECU KANOTI.........................................................................PLAINTIFF
VERSUS
KATHAKA MWARANIA...........................................................................DEFENDANT
RULING
1. By an application dated 27. 8.2021 the plaintiff prays for the lifting of prohibitory orders registered against the title deed No. L.R Kiamuri ‘A’/1277. The application is supported by an affidavit sworn on 27. 8.2021 by Antony Reecu Kanoti.
2. The reasons behind the application are that a judgment was entered for Kshs. 316,789 in favour of the plaintiff and to which he lodged a prohibitory order against the title deed to safeguard his interests and that since he has been paid the entire decretal amount the order has been overtaken by events.
3. The applicant has attached a copy of the search certificate which indicates a prohibitory order was lodged on 12. 2.2015 out of an order issued by this court until the decretal amount is paid in full.
4. The applicant has through annexture marked ARK 2 acknowledged receipt of the entire decretal sum.
5. The applicant attended court during the hearing of this application and confirmed he had been fully paid the entire amount. Despite service of the application, the defendant has not opposed the motion.
6. Be that as it may and guided by the reasoning in Ngugi Miru & Another –vs- George Nganga Kiringa [2020] eKLR, my finding is it serves no purpose to continue the attachment of the suit property through a prohibition order.
7. The prohibition order is hereby lifted with no order as to costs. The relevant land registrar is hereby directed to remove the encumbrance thereof.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 19TH DAY OF JANUARY, 2022
In presence of:
Mbubuya for plaintiff/applicant
Respondent in person
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE